Thursday, October 25, 2012

There's been surprisingly little coverage of Irish government plans to require blocking of foreign betting websites. The plans, contained in s.26 of the Betting (Amendment) Bill 2012, would allow the District Court to make orders as follows:

in the case of a remote bookmaker or remote bookmaking intermediary, an order that telecommunications service providers and internet service providers in the State shall not permit access to —
(i) the internet address of any internet domain that the remote bookmaker or remote betting intermediary concerned uses for the purposes of conducting his business,
(ii) a particular facility in such a domain, or
(iii) any other order that that court considers appropriate for the purpose of ensuring that any such domain, or any remote bookmaking operation conducted by the remote bookmaker or remote betting intermediary concerned is not accessible to persons in the State.

Leaving aside the technological inexactitude of this provision (what, exactly, is a "facility" in a domain? A sub-domain? A particular directory or path?) this is a remarkably wide provision which should worry Irish internet companies.

The reference to internet "service" providers rather than internet "access" providers appears to be wide enough to cover any service provider which could be used to access a site - which would appear to include providers of VPNs, search engines, DNS providers and others. This wide power is then further supplemented by a power to make "any other order" that [the] court considers "appropriate" to ensure that the domain etc. "is not accessible". This seems to be drafted with a view to ordering that sites should be delisted from search engines but could, potentially, be used against any internet intermediary and could be used to, for example, block access to proxy sites and other tools which might be used to circumvent the blocking.

What justification has the Irish state provided for such a far reaching power? Essentially, none. Online gambling was first considered in detail by government in the 2008 report Regulating Gaming in Ireland which cautioned against blocking systems:

The Committee is of the view that censorship of the Internet in an effort to achieve such ends is frequently self-defeating, is unlikely to achieve the intended results, leads to the diversion of scarce law enforcement resources and frequently has unintended and undesirable consequences.

This conclusion was, essentially, reiterated in the 2010 report Options for Regulating Gambling which contained no independent analysis on this point. These are, to date, the only government documents which address the issue - there has been no regulatory impact assessment published - and it is striking that neither recommends blocking systems.

However, blocking access to websites does not work as an isolated enforcement tool and can be easily circumvented. Moreover, depending on the technology used, website blocking can impact on legitimate businesses. The efficiency of the blocking method furthermore depends on the validity of the list of blocked websites. Keeping the list up-to-date requires significant resources while internet addresses can be changed instantly. Lastly, ISPs are faced with the implementation of the provisions for blocking access to websites, not only implying costs and tying-up of resources but also creating potential liability issues.

Simply put, the case has not been made for this new type of blocking and it would set a worrying precedent if such a far reaching power were to be created.Once ISPs are forced to introduce blocking mechanisms for one purpose, it is only a matter of time before others seek to jump on the bandwagon.